Comcast comes out swinging in court against the spanking it got from the FCC …

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Almost a year ago, Comcast pledged that it would sue the Federal Communications Commission over its Order sanctioning the cable ISP for peer-to-peer throttling. Now, the company has filed its case with the United States Court of Appeals for the District of Columbia Circuit. Although Comcast's legal arguments are complex, the crux is simple: there were and still are no statutes or credible regulations that support the Commission's authority to act on this matter, the company says.

"For the FCC to conclude that an entity has acted in violation of federal law and to take enforcement action for such a violation, there must have been 'law' to violate," Comcast's Opening Brief to the court contends. "Here, no such law existed."

Undoubtedly, many parties will soon file with the court in opposition to and agreement with Comcast's legal claims. But Comcast had to file first. Here's a summary of what they say the FCC did wrong in punishing the company.

Doing so 24/7

First, let's recap: After months of proceedings, hearings, and investigations, the FCC concluded on August 1, 2008 that Comcast was discriminating against certain P2P applications using deep packet inspection techniques. These methods thwarted the ability of users to share video and other files via BitTorrent. "Comcast was delaying subscribers' downloads and blocking their uploads," declared then FCC Chair Kevin Martin. "It was doing so 24/7, regardless of the amount of congestion on the network or how small the file might be. Even worse, Comcast was hiding that fact by making effected users think there was a problem with their Internet connection or the application."

Comcast had an anti-competitive motive for this behavior, the Commission argued, as P2P apps offer consumers a video sharing alternative to cable television. The agency told the company to stop its current practices, disclose what it was actually doing, come up with a new, non-discriminatory system by the end of the year, and let consumers know how the new system will work. The company quickly complied with these orders, and announced the deployment of a new "protocol agnostic" network management system in mid-September.

But months earlier, Comcast Vice President David Cohen had warned the FCC that, in the ISP's opinion, there was no statutory basis for the actions the agency eventually took. What the company has sent to the DC Circuit Court is an extended version of that letter: no law backs the FCC ruling about Comcast.

"If the Commission truly believed that any statutory provision was directly enforceable against Comcast’s conduct, it would not have premised the Order entirely on ancillary authority," Comcast writes. "Ancillary authority"—what the hell does that mean?

Ancillary madness

As this legal debate heats up again, you can expect to see the following narcoleptic-coma-inducing question repeatedly asked and debated. Does Title I of the Communications Act gives the FCC "ancillary authority" or "ancillary jurisdiction" over network management issues?

People get thrown by the word "ancillary" here. It essentially means an additional, supplementary, or implied power. Title I outlines the FCC's job. It's there "for the purpose of regulating interstate and foreign commerce in communication by wire and radio," Title I says. And section 230(b) of Title I adds that it is the policy of the United States "to preserve the vibrant and competitive free market that presently exists for the Internet" and "to promote the continued development of the Internet."

This Title I authority played a large part when the FCC invoked its famous Internet Policy Statement, which plays a big role in the Comcast drama. That's the 2005 declaration that consumers are entitled to access the lawful Internet content of their choice and are entitled to competition among network providers. In its Comcast Order, the Commission explained that it created the statement in recognition of "its responsibility for overseeing and enforcing the 'national Internet policy' Congress had established in section 230(b) of the Communications Act." The agency was now committed to integrating the Policy Statement into its ongoing policy-making work, it declared.

Show us the rules

So the obsessive-compulsive question for legal beagles is whether Title I gives the FCC the legal cajones to stomp ISPs if they block your efforts to download the movie trailer for District 9 via BitTorrent, Vuze, or some other P2P app. The consumer groups that petitioned the FCC to do something about Comcast's behavior say that Title I granted the FCC all the authority it needed to act in this situation. Free market groups like the Progress and Freedom Foundation contend this ancillary authority business is way too vague to be used in something as crucial as regulating network management. PFF calls it a "standardless discretion" contrary to "the foundational principle that agencies only have that authority conferred by Congress, which ensures accountability."

Defenders of the FCC push back, saying that even the Supreme Court recognized ancillary authority in the Brand X decision, a crucial ISP access case, and that Title I has been used repeatedly. Critics say yeah, sure, but only under certain strict circumstances. We leave it to you to follow the rabbit hole down as far as you'd like on this question. The bottom line is that Comcast, as you've probably already guessed, argues that Title I doesn't give the FCC diddley when it comes to overseeing ISPs.

"Section 230(b) does no more than set forth 'the policy of the United States,'" Comcast notes. "It does not even remotely establish mandatory standards of conduct" for regulating network management. That means, Comcast charges, that the FCC pretty much cracked down on the company's behavior based on a Policy Statement that was not created by Congress, and which, well, was basically just a policy statement.

Where is this going?

Comcast's filing even denies that it did anything wrong in the first place, network management-wise. "To prevent P2P usage from degrading all of its customers' Internet experiences," the company says for the umpteenth time, "Comcast managed, in limited circumstances and in a limited manner, those P2P protocols that had an objectively demonstrated history of generating excessive burdens on its network. Specifically, it temporarily delayed certain P2P uploads (but not downloads), on a content-agnostic basis."

But it's unclear what the cable giant and its supporters think they will accomplish by this aggressive effort to overthrow the FCC's decision. As veteran telecom attorneys like Andrew Lipman have noted, if the courts do shut down the FCC's order on Comcast, "expect Congress to move very quickly" on some kind of net neutrality legislation. The usual suspects on Capitol Hill have already got yet another bill in the hopper, and this time they're in control of all the key committees in the House and Senate. One wonders whether, in the not too distant future, the big ISPs will look nostalgically back on the happy days when the FCC's Internet Policy Statement was all they had to obey.

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Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar